KAMPALA – The Court of Appeal Monday, August 24 upheld the High Court 20-year jail sentence that was handed to Jacqueline Uwera Nsenga, who was found guilty of murdering her husband.
Justices Owiny- Dollo, Elizabeth Musoke and Cbeborion Barishaki ruled that prosecution proved Ms Nsenga’s crime beyond a reasonable doubt.
High Court Judge Duncan Gaswaga handed the sentence to Ms Nsenga after convicting her for the murder of her husband Juvenal Kananura Nsenga by running over him with a car at their home in Bugolobi, Kampala in January 2013, an act that was judged intentional.
Ms Nsenga had appealed her conviction through lawyer David Mpanga.
She argued that prosecution did not submit any certified translations of the supposed dying declarations but instead the witnesses gave their own interpretations of the statements based on their personal comprehension, among others.
THE REPUBLIC OF UGANDA
IN THE COURT OF APEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0824 OF 2015
2ACKLINE UWERA NSENGA ::::::::::::::::::::::::::::::::: APPELLANT
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(An oppeal from the decision of the I-li9h Court ‹ft K‹fmpalobefore Gosmaga, J. dated the I day of April, 2016 in Criminal Cose No. 0312 at 2013)
CORAH: HON. MR. JUSTICE ALFONSE OWINY-DOLLO, DC3.
HON. LADY JUSTICE ELIZABETH MUSOKE, JA. HON. MR. JUSTICE CHEBORION BARISHAKI, 3A.
3UDGIKENT OF THE COURY.
This appeal is from the decision of the High Court (Gaswaga, 1.) in which the appellant was convicted of the offence of Nurder contrary to Section 188 and 189 of the Penal Code Act, Cap. 120 and sentenced to 20 years imprisonment.
The appellant was indicted with the offence of murder. She pleaded not guilty and the matter proceeded to trial. The facts as accepted by the trial Court upon conclusion of the trial were that the appellant had, on the 10t h day of January 2013 at Plot 6 Muzindalo Road, Bugolobi Nakawa Division in
Kampala District, with malice aforethought, caused the death of Mr. Nsenga Juvenal. On the basis of the acceptance of the said facts, the appellant was convicted and sentence accordingly. Being dissatisfied with the decision of the trial Court, the appellant now appeals to this Court, on grounds, set forth in her memorandum of appeal as follows:
”1. That the Learned Trial 2udqe erred in law and fact when he relied on an equivocal out of court statement of the deceased to convict the Appellant.
- That the Learned Trial 2udge erred in law and fact when he failed to properly evaluate the evidence adduced at the trial and apply it to the law of the offence of murder c/s 188 of the Penal Code Act Cap 120.
- That the Learned Trial 2udge erred in law and fact when he shifted the burden of proof from the Prosecution and placed it on the Appellant.
That the Learned Trial Judge erred in law and fact when he unduly relied on circumstantial evidence to infer guilt of the Appellant.”
At the hearing of this appeal, learned Counsel Mr. David F.K. Npanga, Mr. Isaac Walukaga and is. Sophie Nyombi jointly appeared for the appellant, while Ms. Josephine Namatovu, Assistant Director of Public Prosecutions appeared for the respondent. The appellant was present in Court.
Counsel with leave of Court, were allowed to proceed by way of written submissions which they highlighted at the hearing of the appeal
Counsel for the appellant argued ground 1 first, grounds 2 and 4 together and finally ground 3. Counsel for the respondent replied to the submissions in the same order that they were argued.
On ground 1, it was counsel for the appellant’s submission that the learned trial judge erred when he relied on the evidence of the dying declarations in finding that the deceased’s death was caused with malice aforethought. Counsel referred Court to Section 30 of the Evidence Act Cap 6 and the case of Mibulo Edward v Uganda, Criminal Appeal No. 17 of 1995 for the legal proposition that whereas corroboration is not mandatory to fortify a dying declaration, it is unsafe to base a conviction on a dying declaration without corroboration.
Counsel for the appellant conceded that the admissibility of a dying declaration has its origins in the general belief that a dying man is unlikely to tell a lie. Counsel for the appellant, however, further submitted that a person in the face of imminent death might be overcome with fear and anxiety rendering him prone to confusion. Counsel for the appellant referred Court to Tindigwihura Mbahe v Uganda, Criminal Appeal No. 009 of